Did Saanich's EDPA pose a threat to property values?

IN THE KEYNOTE SPEECH at a recent conference on the value of nature in urban areas, Don Luymes, director of strategic initiatives in Surrey, cited a refrain that had many of the participants, like Saanich resident Carmel Thomson, nodding. “The battle for sustainability will be won or lost in the suburbs,” said Luymes.

The suburbs of Saanich have become one of the most watched of these battlegrounds, because the stakes have never been so high: one of the hottest high-end real estate markets in the world vs. one of the most endangered ecosystems in the country. Emotions run high on both sides. Nowhere in Canada is there a place so rare and ecologically-important pitted against a global luxury housing market so aggressive.

A new house under construction in Saanich amidst a Garry oak ecosystem, the kind of property subject to Saanich's EDPA bylaw

Just as Premiers Notley and Horgan face off over a fundamental disagreement on what constitutes the national interest and constitutional rights (protecting oil investments or the coastal environment), Saanich residents engage in similar clashes over what is more important: protecting their property rights, or nature. Some, like Mayor Richard Atwell, are asserting that there is agreement that nature is valued, but disagreement on the best way to protect it on private property (or if, in fact, it can be protected on private land at all). Others are arguing that the biggest problem is leadership—a failure to listen and bring opposing groups together to work out a less polarized solution.

For people like Carmel Thomson, a local landowner who has been at the forefront of sustainability initiatives in Saanich and is one of the members of SAFE (Saanich Action for the Environment), the 33-year battle for Saanich’s “rare ecosystems and vital habitat” lost a lot of ground it couldn’t afford to lose on November 6, 2017. That night, Mayor Atwell, and councillors Susan Brice, Karen Harper, Fred Haynes and Lief Wergeland, voted to rescind a bylaw and planning tool called the Environmental Development Permit Area (EDPA). Their one-vote majority was the result of the September by-election to fill Vic Derman’s seat (Derman died suddenly last year).

Carmel Thomson and Saanich Mayor Richard Atwell

Adopted by Saanich Council in 2012, the EDPA bylaw identified environmentally sensitive areas like Garry oak ecosystems in the municipality, putting them under a special set of guidelines, and requiring a permit before you could alter them (for example the construction of a new building or dock). The areas—representing about five percent of the 40,000 private properties in Saanich (and 52 percent of public lands)—were determined by various inventories of sensitive ecosystems, wildlife trees, and conservation data. Though a permit for alteration was required, numerous exemptions were allowed, for everything from hazardous trees to existing gardens and landscaping to small outbuildings and slope stabilization. If a permit was required, certain guidelines were to be employed. While proponents saw it as inoffensive and helpful, critics claimed it was heavy-handed and an invasion of privacy.

Thomson traces Atwell’s decision to rescind the EDPA back to a pledge he made publicly to represent a group of anti-EDPA landowners called SCRES (Saanich Citizens for a Responsible EDPA) who were successful in convincing the mayor, at the start of his mayoral career in April of 2015, with their claims that an EDPA designation “places an undue burden on homeowners while not protecting the environment.” Atwell defends his loyalty to the anti-EDPA side: “I pledged to give a voice to the issue at the council table. This is what we do as elected representatives.”

According to Thomson, this loyalty has led to a “failure” in public process that might have brought some clarification to these claims, and the bylaw itself. The issue has certainly attracted a more-than-average amount of controversy. The biologist who supported SCRES’ claims is now facing disciplinary hearings from his professional association over possible conflict of interest.

With regard to public participation, the $50,000 independent review of Saanich’s EDPA (called the Diamond Head Report) described the process as “an acrimonious social discourse” and pointed to “confusion and misunderstandings about the bylaw and its implementation.” The acrimony and confusion seeped into town halls, open houses and the by-election to replace Derman, who had been pro-EDPA.

Rather than clear up the misunderstandings or implement the recommendations of the Diamond Head Report, Mayor Atwell and council passed a motion to rescind the bylaw on November 6, 2017. The toxicity of the process pushed one frustrated citizen, Dr Lynn Husted (in support of the EDPA) to file a legal petition through the Canadian Charter for Rights and Freedoms, just for the right to express her concerns without interruption from Atwell and some members of council.

According to Chris Tollefson, who is the executive director for the Pacific Centre for Environmental Law and Litigation and who took Husted’s petition forward, his rationale for supporting this case is “to stand up for due process and the rule of law when we see things going so sideways.” What he means by “sideways” can be seen on a video of that November 6 meeting, available on the Saanich Council website. What viewers will see is Husted trying to deliver her arguments for why Saanich should have waited before passing a motion to rescind the EDPA, pending results of the disciplinary hearing of the biologist. After being cut off on several occasions by the mayor and Councillor Haynes on what they perceived as a point of order, Husted was ordered to stop.

Atwell apologized in a settlement out of court, but is not initiating any changes in the chilly climate of debate around EDPAs. According to Atwell, “The rules that currently exist have been in place since we began webcasting council meetings and remain in place unchanged.”

When asked why he didn’t implement the recommendations of the Diamond Head Report (which was commissioned by Saanich) instead of rescinding the bylaw, Atwell stated: “The overwhelming response is that the EDPA is not working as intended, is burdensome and achieving little in the way of measurable results.”

Thomson argues that Atwell’s position is inconsistent with the findings of the report which “confirmed the high level of interest, knowledge and passion Saanich residents have towards environmental protection in their municipality…there is support in the community for protecting the natural environment using the EDPA, but that improvement in the Bylaw is required.”

The 77-page Diamond Head Report provides ample evidence that the EDPA is supported by the public, along with 15 recommendations on how to improve it. The consultation was extensive, and included a review of all public feedback from open houses, town halls, questionnaires, and interviews with landowners, staff members and council—as well as a review of economic impacts of the bylaw, and best practices in other local governments. Atwell’s reference to “measureable results” seems unclear, as the only measureable data available is what staff collected for 2016 on 20 permits for restoration. Those permits resulted in the successful planting of native trees and shrubs in all 20 cases, and removal of invasive species in half of them.

AT THE HEART OF THE ISSUE is whether the battle for sustainability is losing ground because of the limited tools available, or the deteriorating state of public discourse—with real estate prices skewing the debate further. EDPAs are one of the few legal tools that a municipality has to influence how natural areas on private land are protected. It is the same kind of tool that has worked reasonably well for stream and tree protection, flood control, and hazardous slopes where the development permit designation provides restrictions, but also some flexibility to negotiate development design through the permit process. The tool has been available under the Local Government Act and Municipal Act since 1985, but it took Saanich Council 27 years—after a lot of lobbying from citizen groups and people like Thomson—to add ecologically-sensitive areas like Garry oak ecosystems to more conventional stream and slope protection measures.

The Province kick-started the process in the early 1990s in the Capital region by leading the Sensitive Ecosystems Inventory Mapping project—a necessary first step to establishing this bylaw, and following on BC’s international commitment to biodiversity. The municipal role of protecting ecological values has only slowly been embraced, because the development industry has influenced, perhaps unduly, local government agendas. Understandably, those who had fought for this hard-won planning tool are not happy with the reversal, especially in light of the fact that the independent consultants found the majority of the public was in support of it.

Part of the problem, Thomson suggests, is the misinformation that was generated by “well-lawyered landowners.” Much of the recruiting for SCRES appears to have emanated from Ten Mile Point. Eight properties that applied for removal from EDPA and were identified in the disciplinary hearing for the biologist’s “failure to undertake proper due diligence and ground work with respect to the preparation of reports” all came from two streets: Tudor and Seaview.

Residents on both sides of the issue declined to comment, due to the toxic nature of the conflict. When trying to find a spokesperson for SCRES, Focus was directed to the biologist named in the hearings. On the SCRES website, a key resource listed is the Fraser Institute’s Stealth Confiscation: How Governments Regulate, Freeze and Devalue Private Property without Compensation, which claims that property values are lowered by these types of designations. SCRES’ campaign was launched in 2015 on that assumption. Leaflets were distributed stating “it punishes thousands of homeowners without compensation” and “Not only does it impact true property development or subdivision but it also impacts the enjoyment, use AND the resale value of thousands of private properties whose owners just want to plant gardens, add patios and build fences.”

Yet a BC Assessment Authority report of January 2016 (obtained through a freedom of information request) stated there was no evidence that an EDPA designation devalued property in Saanich. Was this report ignored by those opposed to the EDPA?

A January 2017 report conducted by Rollo and Associates concluded that in only a few extreme cases would the EDPA guidelines impact property values. These impacts could be eliminated by Saanich relaxing the EDPA guidelines for these very few properties. The authors noted that there was “quite a bit of confusion, uncertainty and misunderstanding regarding the impact of EDPA guidelines on land use and property development.” Again, we have to wonder whether this report, too, was ignored by EDPA opponents.

Thomson doesn’t buy the idea that this is an unworkable bylaw. The Diamond Head Report points out that “similar EDPAs are implemented in many other BC municipalities without incident.” This includes North Vancouver, West Vancouver, Kelowna, Nanaimo, Campbell River and Surrey. Though “broadly comparable…none had the degree of protest seen in Saanich.” The consultants reviewed the use of EDPAs in nine other local governments and identified key elements that Saanich might want to adopt and improve on. Some of those strategies (outside of the EDPA), Saanich council is already endorsing.

When mayor and council passed a motion to explore rescinding the bylaw on October 28, they also requested their staff “report as soon as possible on the potential of developing a Saanich program which includes the topics of Climate Adaptation, a Biodiversity Conservation Strategy, and Stewardship Program to serve as a policy framework for other Saanich environmental policies and programs and a new Environmental Development Permit Area be considered part of this program; and the Diamond Head Report recommendations be considered as a component of this report.”

But by November 6, a resolution was moved by Karen Harper to rescind the EDPA. Dozens of citizens spoke forcefully on the matter—on both sides—and councillors opposed (Brownoff, Murdock, Plant and Sanders) made the point that it was imprudent to ignore the consultants’ recommendations, throw aside a bylaw that had been years in the making, and act contrary to the goal of a sustainable Saanich.

Throwing the baby out with the bathwater doesn’t make a lot of sense to Lynn Husted either. “How can a close vote be able to overturn a bylaw that various reports found to be at least as good or better than others studied, that has been in place for six-plus years, and where most of the recommendations for improvements could be implemented within a year.”

Atwell, on the other hand, seems attached to his voluntary approach to stewardship: “The municipality cannot police private property in any practical way. To accomplish that, it needs an incentive-based approach towards stewardship that gains social license and can be easily understood by residents. The EDPA took the opposite approach, and failed for that reason.”

Stewardship programs have been underway in Saanich for years, with an Environmental Education Officer who administers programs like Naturescape; Our Backyard quarterly newsletter; the Garry Oak Restoration Project that showcases best practices; workshops; control of invasive species; and a native plant salvage program.

Saanich has been leading the pack provincially in this regard, but voluntary measures have not halted the downward decline of this vital ecosystem. The Sensitive Ecosystem Mapping Inventory was completed over 20 years ago, and at that time, less than five percent of Garry oak ecosystems still existed, with over a third of these remnants in Saanich (of which roughly half were on private land, and half in Saanich’s parks). One thing almost all municipal planners will agree on is that tracking the success of policy is essential, and that voluntary measures only go so far before laws need to kick in at a critical level—and Garry oak ecosystems are at a critical level.

Thomson and Husted are hoping that there will be some changes in the process: more education, more use of data about the current state of the environment, and building on the information and ideas generated through earlier consultation (i.e. research and reports like Diamond Head). “We could be engaging the wider community in identifying issues, generating ideas and, together, developing workable solutions that could include notions such as tax incentives for those who have natural areas.” In the Gulf Islands, for instance, the Natural Area Protection Tax Exemption Program (NAPTEP) provides a tax rebate of 65 percent of a landowner’s annual property tax on the portion of their land protected by a NAPTEP convenant. There are lessons to be learned from the wider community.

According to Thomson, “the battle for sustainability can be won if Saanich shows true leadership, and lives up to its Official Community Plan’s commitment to being ‘a sustainable community where a healthy natural environment is recognized as paramount for ensuring social well-being and economic vibrancy for current and future generations.’ Preservation of our fragile ecosystems depends on it—and our children and grandchildren are depending on us.”

Briony Penn’s most recent book, The Real Thing: The Natural History of Ian McTaggart Cowan, won the Roderick Haig-Brown Regional Prize and the inaugural Mack Laing Literary Prize. She now lives on Salt Spring Island, but she grew up in Saanich and worked on mapping Garry oak ecosystems in the Sensitive Ecosystem Inventory over two decades ago.